Showing papers in "Yuridika in 2021"

Protecting Freedom of Expression in Multicultural Societies: Comparing Constitutionalism in Indonesia and Canada

Abstract: This paper explores the similarities and differences in Indonesia and Canada regarding the constitutionally protected freedom of expression. While one may expect that both countries do not have much in common from a general standpoint, both do have several similarities in their approach to the interpretation and application of that freedom. The exercise of freedom of expression is also examined through the spectrum of jurisprudential examples from both countries, more specifically in the context of ‘hate speech’, ‘artistic expression’ and ‘language expression’. In addition, the social reality of both countries underlying the freedom of expression is uncovered. Further, the limitations imposed in both countries on that fundamental freedom are also discussed. Learning from the exercise that consisted in this paper to compare relevant laws of two countries, and despite the differences between their respective legal traditions, this study argues that freedom of expression, in two different countries such as Indonesia and Canada, can play a more effective role in a society with a multicultural character that complies with the rule of law.

Artifical Intelligence as Disruption Factor in the Civil Law: Impact of the use of Artifical Intelligence in Liability, Contracting, Competition Law and Consumer Protection with Particular Reference to the German and Indonesian Legal Situation

Abstract: The Article describes the impact of artificial intelligence in different areas of the civil law, namely tort law, contract law, antitrust law and consumer protection law. It shows that the use of artificial intelligence already leads to legal constellations, which cannot longer easily subsumized under elementary terms of the civil law and therefore cause a real disruption in the civil law. Terms, which are based on a freedom concept of the subjective rights of the actors, such as private autonomy and contractual will not fit anymore to the activity of artificial intelligence systems the more those systems are able to act independant of human actors. Similar applies to terms which are referring to the freedom of decision like the market behaviour in the competition law. The article discusses several solution approaches, such as personification approches, agent-principal approaches and the definition of new categories of market and contractual acting. In the consumer protection the special focus in the future legal development will be on the problem how to achieve adequate, though not overflowing, transparency for consumers, especially regarding the combination of big data and algorithms.

Legal Politics of Responsive National Education System in the Globalization Era and the Covid-19 Pandemic

Abstract: The Government’s serious effort to build a National Education System in anticipating the development and progress of the globalization is manifested through making, stipulating and implementing policies related to the education sector, so that to prevent illegal policies, laws and regulations are needed as a juridical basis for these policies especially during the current Covid-19 Pandemic. The making of laws and regulations is called political law. What needs to be emphasized in legal politics is the guarantee of protection for public participation in the formation of laws and regulations. Community participation, if associated with responsive law, implies that the principle of public participation is the main thing in the formation of law for the realization of democratic legal products. Responsive legal politics still creates problems due to the lack of public participation in the making of laws and regulations. Therefore, the research problem is whether the legal politics of the National Education System in the era of globalization is responsive or not? The approach used is normative juridical. The results show that the responsive legal politics of the National Education System in the era of globalization consists of: Law Number 20 of 2003 on the National Education System, Law Number 14 of 2005 on Teachers and Lecturers, Law Number 12 of 2012 on Higher Education, and Circular of the Minister of Education and Culture Number 4 of 2020 on Implementation of Education Policies in the Emergency of Coronavirus Disease (Covid-19) Spreading.

Regional Head Election During COVID-19 Pandemic: the Antinomy in the Government Policies

Abstract: Welcoming the simultaneous regional head election in 2020, it is expected to be an entry point in building a higher quality democracy in Indonesia. Initially, this year's election should be held on September 23. However, this plan must be constrained when the coronavirus disease 2019 (COVID-19) outbreak occurs and spread wildly all over the world including Indonesia, and was officially declared a pandemic by World Health Organization (WHO). When the number of positive cases and deaths continues to increase, the government decided to continue holding the regional election in the midst of the pandemic. Such policy created controversy and faced several challenges, especially regarding the government's inconsistency in fulfilling the rights of its people in the time of the pandemic. This article aims to explain and analyze the contradiction in the government policies from the antinomy of law and human rights perspective. This legal research is doctrinal research conducted using a conceptual, statutory, and case approach. The data will be described in a descriptive-prescriptive manner through qualitative analysis. The results of the analysis show that there are some contradictions between policies regarding physical distancing (both in the Large-Scale Social Restrictions (PSBB) and Health Protocol regulations) and the policy for holding Regional Head Elections during the pandemic. In essence, this contradiction is the antinomy between the aspects of public health and political rights. Antinomies occur when the government seeks to fulfill and guarantee political rights as well as public rights to health at the same time during a pandemic, which actually leads to mutual negation between these rights.

Disclosure of Information on Environmental Documents in Supporting the Role of Public Monitoring

Abstract: The role of the community is very important in realizing the fulfillment of the right to a good and healthy environment for everyone as part of human rights. The lack of awareness of the disclosure of information on environmental documents to the public in conducting surveillance of activities or businesses that have an important impact on the environment is one of the many violations of environmental law that results in environmental damage and pollution. This paper seeks to examine the importance of information disclosure on environmental documents in supporting the role of community oversight of activities that have an important impact on the environment. The research method used is a normative legal research method with the statutory approach and conceptual approach. The conclusion of this paper discovered that disclosure of information on environmental documents is important as an effort to optimize the role of public monitoring. Environmental documents are used as a guide for detailed information related to compliance with the implementation of activity on its terms and obligations. This disclosure information must be seen as the implementation of the right to access information in support of the implementation of community responsibility for guaranteeing and fulfilling the rights of everyone to a good and healthy environment as a human right so that environmental damage and pollution from activities that are illegal and/or violate their environmental permits can be controlled and prevented.

The Implementation of Good Governance In The Presidential Election In Indonesia

Abstract: The 2019 presidential and vice presidential elections in Indonesia had complicated issues, including broken ballots, multiple voter lists, not registered as permanent voters, political money, transparency, administrative violations, electoral penalties, and high white numbers. These problems indicate that the values contained in the concept of good governance are not implemented in the election process. To analyze the issues, this paper uses normative method. The method is by analyzing the Laws. Especially when related to aspects of law enforcement in the principles of administrative law in good governance. This method will be formulated for implementing good governance in the election process. The results of the analysis have who that the electoral justice is very important to be achieved in the presidential election in Indonesia. the presidential system is in order to strengthen the presidential election. However, the presidential election as one of the recruitment in the Presidential in Indonesia system in election is against justice because do not use a good governance in election process. It is not supporting the electoral justice. Results of previous elections in Indonesia, it was found that the values of good governance have not been well implemented in all stages of the election, both in the pre-election stage, the election process until post-election. Especially when related to aspects of law principle in election. this research will be formulated with good governance system for implemented in election process. The paper will be socialized and implemented in the holding of presidential system election in Indonesia.

BUMDes as an Alternative Resolution to the Conflict of Marine Tourism Management in Madura

Abstract: The utilization of coastal space for marine tourist destination has developed very rapidly; unfortunately, this marine tourism management potentially results in conflict. Marine tourism managed by villagers in Bangkalan Regency is the example of potential conflict in its implementation. In Labuhan Village, Sepulu Sub District, Bangkalan Regency mangrove tourism has resulted in conflict of management between the communities in a village. It is well established that public participation is one of variables that can affect supportability of coastal environment for marine tourism development, but non-participative management will affect the sustainability of tourism business itself. The objective of research was to formulate the model of marine tourism management policy through Village-Owned Enterprises (BUMDes). Such policy model is expected to minimize the conflict of spatial management. To achieve this objective of research, a Socio Legal Research type was used with factual and conceptual approaches. The result of research showed that the marine tourism management policy in Madura coastal area is managed more in group by mangrove farmer group, tourism consciousness group ( pokdarwis ) and community supervisor group ( pokwasmas ), and only very few have been managed by BUMDes. BUMDes is selected to be a legitimized institution in managing the marine tourism in coastal areas, because BUMDes can stimulate and activate the rural economic wheel managed fully by villagers. Juridical construction of marine tourism management through BUMDes can be legitimized based on Village Act. Village Regulation and legal entity-organization are legal figures underlying the marine tourism management through BUMDes as governed in Village Act and Minister of Village, Transmigration, and Disadvantaged Region’s Regulation about the establishment, the administration and management, and the dismissal of Village-Owned Enterprises.

Criminal Law Aspect of Illegal Transshipment Under Act Number 45 of 2009 Concerning Fisheries

Abstract: This study aims to analyze the practice of illegal transshipment in compliance with Act Number 45 of 2009 criminal provisions law concerning Fisheries, using legal concept, law, and case approaches. Nowadays, there are various operational modes of fish theft, with poor regulations that maximally accommodate crimes related to fisheries by perpetrators. Therefore, due to its unsustainability and economic loss, the fisheries and marine sector in Indonesia has to improve its performance. The results show that illegal transshipment engages some elements contained in Article 94 and 94A of Act Number 45 of 2009 which was an amendment of Act Number 31 of 2004. According to article 94, when a fishing vessel is caught transferring shipment in the middle of a high sea without in possession of a license called SIKPI, its owner/s are sentenced to 5-years imprisonment with a IDR 1,500,000,000 fine. Meanwhile, according to Article 94A, when a fishing vessel is caught using fake licenses such as SIUP, SIPI, and SIKPI, its owners are sentenced to 7 years imprisonment with a fine of IDR 3,000,000,000.00).

The Intersection of COVID-19 and Mental Health: What's the Matter with Ethics?

Abstract: As the coronavirus (COVID-19) pandemic rapidly sweeps across the world, despite the measure taken to contain the spread of the disease through quarantine, it induces a considerable degree of fear, worry and concern in the population at large. Health care providers, older people and people with underlying health conditions are the most vulnerable to the pandemic. Nations, even countries with advanced medical sciences and resources, have underestimated the perils of the pandemic. Efforts are focused on understanding the epidemiology, clinical features, transmission patterns, and management of COVID-19 disease. One aspect overlooked is the mental health crisis underpinning the effects of self-isolation/ quarantine and the deaths of loved ones—the number of positive cases in Malaysia at an exponential growth rate each day. With strict preventive measures and restrictions by the Malaysian Government in the form of nationwide Movement Control Order (also known as MCO), the citizens are going through a range of psychological and emotional reactions and fear and uncertainty of being one of the infected. Many studies have been conducted to identify the state of mental health of people during this calamity. This raises ethical concerns and legal issues with regards to the rights of individuals enduring mental illness. This paper explores the ethical issues about the research on mental health during Covid-19 pandemics and the regulatory mechanisms which protect the rights of the persons who have the symptoms of mental illness.

Reconceptualizing the Concept of Corporate Governance and its Goals in People’s Credit Banks in Indonesia

Abstract: This Article examines the concept of corporate governance and its goals in People’s Credit Banks (PCBs). In 2015, Indonesian Financial Services Authority (IFSA) issued two main regulations on corporate governance and risk management for People’s Credit Banks (PCBs). This investigation shows that in these two regulations ISFA simply defines corporate governance as the implementation of transparency, accountability, responsibility, independence and fairness (TARIF) principles by PCBs. Basically, such kind of conceptualization is not appropriate as it does not define the concept of corporate governance itself, but rather, it just reaffirms the general principles of good corporate governance. Meanwhile, IFSA does not clearly provide the goals of corporate governance in PCBs. It is recommended that IFSA should reconceptualize the definition of corporate governance by focusing more on the function of PBCs boards. Meanwhile, the goals of corporate governance in PCBs should deal more with the achievement of long-term success of PCBs.

Forestry Borrow to Use Permit in Upstream Oil and Gas Activity: Ecology Governance, Development Administration, and Administration Law Perspective

Abstract: The “Forestry Borrow to Use (FBU) Permit” is an approval of the Ministry of Forestry to allow non-forestry activity to be conducted in Forestry Area. The Upstream Oil and Gas (OG) activity is commonly conducted in suburban or remote area where is located in such forestry area. In this kind of situation, a permission process must take place. So that there is a hierarchy: The Upstream OG activity Executor shall be in position as the Applicant, while the Ministry of Forestry shall be in the “higher” position as the Approver/Issuer the FBU Permit. This shows that between Governmental Institutions, one’s position is subordinate from another, thus causing a situation in which one institution’s plan can be disapproved by another government institution’s decision. Is this hierarchical structure conforming with the new values of coordination, synchronization and harmonization among government institution as required by Good Governance? This paper will analyze it in the perspective of Ecology Governance, Development Administration, Administrative Law in the Democratic Country

The Functions of Principle as the Basis of Court Decision in Hard Cases

Abstract: The task of court is to produce just decisions. A court decision may be just if it coheres moral. Principle is praxis of moral. This article is to articulate that principle has significant meanings in court’s decisions. This is because principle is a moral standard that serves to be a reference for Court to settle hard cases equitably. In this writing, case approach is employed. In addition, it also uses comparative approach, in which court decisions of different countries are presented. The purpose of using comparative approach is to find similarities in referring to principle despite different jurisdictions and even different legal systems. From this study, it is found that principle may serve four functions to the court to reach equitable decisions. First, it may be a legal basis for the court to settle a case equitably in the absence of legal rule. In fact, not all human conducts are prescribed by law. It is frequently presumed that what is not prohibited is permitted to do. In this study, it is found that what is not forbidden is not necessarily permissible. The corner stone of determining whether or not it is permissible is principle. In this case, principle served to be legal basis directly applied by the court to avoid producing unjust judgment. Second, the principle has the derogatory function to supersede a statutory provision. In this case, applying such a provision may result in decision contrary to moral. This, certainly, contradicts the idea of the establishment of court of justice. It is justified, therefore, referring to the principle, the court supersedes such a statutory provision to bring about a just decision. Third, the principle serves to be a basis for the court to interpret obscure statutory provision governing the case. It is not unusual that statutory provision is obscure or ambiguous. Such a provision is hard to understand. Settling the case governed by such a provision appropriately, the court should interpret the provision sensibly.

The Use of Receivables as Collateral in Business Practices in Indonesia

Abstract: This article discusses the enforceability of Article 9 of Law No. 42 of 1999 on Fiduciary Guarantee that allows the use of receivables as debt collateral in business practices in Indonesia. Receivables bound by fiduciary collateral is deemed as a special collateral— in the context of civil law, a special collateral will be prioritized in case the debtor does not voluntarily make when due. In business practices, long-term receivables will be established following an agreement between a debtor and a third party, and the receivables that the debtor is entitled to receive from the third party will be provided as collateral to secure the debtor’s obligations under his loan agreement with the creditor. The issue discussed in this paper is the fact that although theoretically special collateral in the form of receivables should be able to increase the creditor’s assurance of getting repaid, in practice long-term receivables put higher risk on the creditor instead. As comparison, this paper uses the accounts receivables fiduciary in the United Kingdom. The Writing Method used in this paper is the normative juridical approach with a focus on conducting juridical studies regarding the creditors' risk in the use of receivables, specifically long-term debt collateral. This paper shows that receivables that are used as collateral in fiduciary agreements actually put the greatest risk on the creditor; especially if the agreement between the debtor and the third party stipulates that in case the debtor fails to fulfil his obligations, all receivables that he is supposed to receive from the third party will be aborted and become non-existent.

Dynamics of Reasonableness and Fairness in a Pluralistic Legal System: Perspectives from Adat, Islamic and Civil Inheritance Law

Abstract: Reasonableness and fairness are keystones of law. They are implemented broadly and important doctrine for civil law. However, the open nature of reasonableness and fairness allow various interpretations, influenced by the legal system, legal tradition, jurisprudence or measured on a case per case basis. Indonesia recognizes more than one kind of a legal system, making it a legal pluralist State. This article aims to describe the dynamics of the reasonableness and fairness principle within a pluralistic legal system. Indonesian inheritance laws use three different legal systems: Adat, Islam, and civil law, each provides distinctive perspectives of reasonableness and fairness. These differences may lead to a clash of interpretation or it may leave a wide room of discretion for the judges. Court judgments are analyzed to examine the implementation of such dynamics in practice. Finally, the outcome of the paper concludes whether the differences shall be embraced or whether there is a need to agree upon what is ‘reasonable’ and ‘fair’.

The Tensions On The Protection Of Local-Traditional Indonesian Batik

Abstract: Batik artwork has been known for hundreds of years and has become part of the culture of Indonesian society. Some batik motifs in Indonesia have philosophical values and are part of traditional traditional ceremony activities. Along with the times, the creativity of batik artists has become varied even though ancient traditional motifs are still mass produced and used as inspiration. This research examines the legal protection for traditional batik in order to avoid the abuse of rights by certain parties who merely exploit it in order to benefit from the existence of traditional batik works. The formulation of the problem that will be examined in this research is whether traditional batik gets legal protection under the copyright regime in Indonesia? Are there any legal safeguards at the international level for traditional Indonesian batik works? In answering this problem formulation will use a conceptual approach and a statutory approach. This research is a legal research that will examine existing legal concepts and related legal rules in solving legal problems related to the protection of traditional batik.

Medical Malpractice System in the United States of America: Lesson to Learn for Indonesia

Abstract: A system that serves the liability and settlement of medical malpractice disputes or commonly referred to as medical malpractice system has been established in many countries to respond the rise of medical malpractice claims against doctors. Medical malpractice system in the United States of America (the USA) has been relatively well developed as compared to other countries. Beside adopting pretrial screening process in medical malpractice litigation, various methods of alternative to litigation have been developed in the USA. This paper aims to explore the development of the medical malpractice system in the USA and to see the possibility for Indonesia to learn. This normative legal research relies on the secondary data especially which were collected from online sources. It is found that there are some initiatives in the USA that can be adopted by Indonesia for improving its medical malpractice system, especially the establishment of pretrial screening panel. It is expected that pretrial screening process can eliminate meritless claims which later may reduce unnecessary legal actions against doctors.

Fairness in Fair Dealing on the Industrial Design Protection

Abstract: Fair dealing is one of the important elements in the Industrial Design Legislation. Because of that, it is significant to analyze the concept of fair dealing which can be understood by the society to achieve fairness in the protection of industrial design works. Under industrial design, the concept of fair dealing means that industrial design can be used by other parties for education and research purposes as long as it does not prejudice the interests of industrial design right holders. The purpose of this study is to analyze the value of fairness in the concept of fair dealing in industrial design law, so that it can be used as guidelines for the right holders and the public so they not violate the Industrial Design Law and this Law can also be used to advance the welfare of society. This study is normative legal research by using statute and conceptual approaches. While material used for this study are primary and secondary legal materials. This study found that fairness in the fair dealing in the protection of industrial design can be achieved in the form of fulfilment of balance rights between the designer’s right and society. Fairness for both is if between the right holder and society have the opportunities to use and enjoy available industrial design. Industrial design rights holders have limited monopoly rights and the public has the opportunity to use the results of industrial design in a limited manner for their welfare. This is in line with what Aristotle said that justice is given in accordance with values or propriety that is not the same.

The Model of Nonstructural Mitigation Policy to the Landslide Prone Residential Areas in Lebong, Bengkulu

Abstract: The purpose of this study is to find a model of nonstructural disaster mitigation policies for landslide-prone settlements in Lebong Regency. The study is a sociological juridical (sociolegal). processing and analysis of primary data, secondary data, information from the results of the FGD and legal documents were carried out in a descriptive qualitative manner. The results of the study show that the implementation of non-structural mitigation policies for residential areas prone to landslides has not been implemented optimally. In implementing such non-structural mitigation policies, there are several obstacles, both internal and external. The non-structural mitigation policy model for landslide-prone settlements, namely that the Lebong Regency Government needs to formulate and determine community-based policy steps, which include: identification and mapping of potential landslide residential areas, increasing community preparedness, increasing community knowledge and capacity, monitoring continuity towards landslide-prone settlements, control/enforcement, maintain environmental balance, pay attention to the carrying capacity and amperage of the environment, compile planning and budgeting, integrate disaster education in primary and secondary school curricula, strengthen regulatory frameworks and establish mitigation SOPs.

The Failure of New International Economic Order: a Lesson Learned

Abstract: The establishment of the New International Economic Order (NIEO) has been underpinning the development of international law. The shortcomings of this struggle should be seen as a lesson-learn to step forward in the future. It is also essential to harmonise the economic justice relationship among all countries in the world regardless the developed or the developing countries. The sustainable struggle in the world economic sphere will appear as a shout from the perceived disadvantaged countries from an economic competition in the world. The establishment of the right to development that have been adopted in international law is a part of journey of TW struggled in international relation. The paper is simultaneously based on the perception of understanding of principles of NIEO coupled with scepticisms toward this principles and auto criticism of that scepticism in order to be a proposal as a source of international law in future

The Principle of Regulation of Mining Business License

Abstract: The purpose of this study is to see and analyze the substance of a mining business permit regulation for the government to communities around mining and to find out and analyze the basic principles of a government policy to give birth to the welfare of communities around mining. This research used socio-legal research, which is a type of research whose orientation is focused on legal and non-legal aspects, namely the work of law in society and government. This revealed is that (1) the nature of Mining Business Permit Arrangements in regional autonomy has created euphoria among local governments, one of which is the assumption that mining belongs to the region and the local community; (2). Whereas the basic principle of the birth of a policy that does not pay attention to the welfare and interests of the local community will result in environmental damage, disharmony between residents, and the absence of commitment to building from mining entrepreneurs from the community around the mine.

The Annexation of The General Judiciary Against Consumer Dispute Resolution Agency

Abstract: This article aims to analyze the authority of the Consumer Dispute Resolution Agency (BPSK) as Quasi-Judicial in handling consumer disputes as mandated in Article 49 paragraph (1) of Law No. 8 of 1999. This research is a normative legal study that is prescriptive and technical/applied. The research approach uses the Act approach. This legal research material uses primary legal materials and secondary legal materials. The technique of collecting legal materials through library research is then analyzed using qualitative methods. Supervision of the default clause stipulated in the credit agreement is the authority of BPSK; since 2013, the Supreme Court has consistently dismissed consumer disputes for credit agreements positioned as ordinary agreements, stating the parties to the dispute should take their case to the general Judiciary, as well as correcting BPSK's authority. This not only does not imply the principle of lex specialis derogate lex religious but also does not implement efficiency theory that ultimately harms consumers.